Where’s Waldo? Just ask the NSA

December 08. 2013 4:19PMYour cell phone transmits location data to your phone service provider at all times, even when the phone is powered off. Which is why the National Security Agency loves cell phones — and has developed a program to track millions of them. What would the Founders say?

Based on information from the Edward Snowden leaks, The Washington Post reported the existence of the NSA cell phone tracking program last week. The NSA confirmed that it tracks cell phones, collecting nearly 5 billion records a day. The agency says two things that are hard to believe: the program is perfectly legal, and it does not “intentionally” collect data on Americans inside the United States.

The U.S. Supreme Court ruled last year in United States vs. Jones that the government’s use of a GPS device to track the movements of a criminal suspect “constitutes a search under the Fourth Amendment.” In that case, the FBI was trying to bust a man suspected of cocaine distribution. The Obama administration said that it was OK to use a GPS device to track the suspect after the warrant for doing so had expired because such tracking was not a “search” as defined by the Fourth Amendment. The court held that it was a search (but did not rule on whether it required a warrant).

Now Obama’s NSA argues that its cell phone trackings are not searches. But if using a GPS device to track a criminal suspect on public streets constitutes a search, how would using cell phone data to track millions of innocent people, even on private property, not constitute millions of searches?

The NSA insists that its tracking program is concentrated overseas and that any data it collects on Americans inside the United States is incidental. Even if that is true, one must ask: For how long will it be true?

The NSA has developed the power to know where virtually anyone is at anytime. The whole point of our system of government is to deny the state such vast, unchecked powers. As James Madison said, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” We are not governed by angels.

Are we to trust the men who govern us with the unchecked (for it certainly is not checked by the FISA court) power to monitor us at will?